David vs. Goliath, Chapter 4.3 billion
American citizens, little people, and artists all over this blue globe,
On December 30, 2010, the Aspen Skiing Company [Skico] banned me from 50% of my hometown, including leased National Forest, owned by all of us, for distributing a union organizing flyer. Having clearly violated my First Amendment rights, Skico has now brought trespassing charges after I taped a court summons saying it ain’t cool to ban Americans from public lands. My trial is Thursday.
The DA told me he’s going for 6 months jail. The questions being confronted are fascinating: Are Americans not entitled to better their working conditions? Is the emperor naked? Are our ski lifts, like our cultural amenities, subsidized by war profits?
According to the Wall Street Journal, of 1,273 complaints filed by employees who claimed they had been subjected to company retaliation for speaking out between 2002 and 2008, the United States government ruled in favor of whistleblowers 17 times. Another 841 complaints were dismissed unheard, sometimes thanks to minor technicalities. Two of my charges against Skico resulted in a federal settlement with the ineffectual National Labor Relations Board.
In a recent deposition, the 800 pound gorilla’s lawyers from Denver asked why I didn’t just move to Vail or Breck and what did I want? Their intent is clear. My reply: I’m an Eagle Scout and I love my community. And I want to meet with Jimmy and Paula Crown, the owners. See court transcript. My dad grew up in South Texas without running water or electricity. The Mulcahy family ranch is located next to Stephenville, Texas: “the Cowboy Capital of the World and a whole lot more.” Aspen has changed since this area of Colorado was once part of Texas. The Mulcahy’s go back to the Republic of Texas. What’s the name of that Dan Sheridan song that Skico has banned from all its properties?
Skico picked the wrong person to bully out of this small community: I’m white trash with a backbone. And a PhD. We need to sit down and work this out. Aspen is not Versailles; nor feudal Middle Earth.
My neighbors know me: I served 8 years as a trustee of the Aspen Historical Society, I started and sold my own business to pay for graduate school at the Sorbonne and the Universidad de Salamanca; I serve on the Snowmass Arts Advisory Board as a community member; I serve potatoes @ St Mary’s for St Patty’s; I’m a member of the Aspen Jewish Congregation at the L’chaim Hineni Donor Circle; I was a resident artist at Anderson Ranch; I volunteer and exhibit at the Red Brick; I have exhibited in Berlin and Beijing multiple times, including the KW Institute of Contemporary Art. My father, the most honorable man I know, took 5 of us from Aspen to Kenya to bring clean water to the village of a man he met on his 50th wedding anniversary. LOL: in reality, the Mulcahy’s are just little people compared to Goliath.
Please sign my online petition for freedom of speech:
Judge denies SkiCo dismissal motion in ex-instructor lawsuit
by Chad Abraham, Aspen Daily News Staff Writer
Thursday, October 18, 2012
Email this Story
An Aspen man whose lawsuit alleges that the Aspen Skiing Co. and its owners are violating his First Amendment rights scored a victory earlier this month when a judge denied the company’s motion to dismiss the filing.
Senior Judge Thomas Ossola of Pitkin County District Court upheld Lee Mulcahy’s lawsuit against SkiCo, citing greater free speech protections afforded under the Colorado Constitution compared to the U.S. Constitution.
Mulcahy, a former ski instructor who was fired in 2011 after he distributed fliers to guests in the SkiCo-owned Little Nell hotel and in gondola plaza criticizing the ski school’s pay policies, sued the company and its owners, Paula and James Crown in February. He claims he was fired as retaliation for that move and for discussing instructor unionization.
In addition to firing Mulcahy — the SkiCo maintains he was dismissed for work-performance issues unrelated to the fliers and unionization discussion — the company banned him from all of its properties and from the four ski areas, land it leases from the U.S. Forest Service.
Mulcahy, who is representing himself and who also has an ongoing, separate libel lawsuit against SkiCo CEO Mike Kaplan, argued that the ban from public lands violates his right to free speech.
He wrote in the lawsuit that he and others similarly situated will be “chilled and burdened” in the exercise of First Amendment rights because of the continued threat of arrest on public property.
SkiCo’s attorney, Lila Bateman of Denver, had contended that the lawsuit should be dismissed because Mulcahy’s allegations were not supported by sufficient facts.
Bateman argued that claims under the First Amendment only apply to “state actors” and that SkiCo is not engaged in state action.
“To state a violation of the First Amendment, plaintiff must either allege that SkiCo is a state actor, or that its private property is nevertheless a designated public forum,” says Bateman’s motion to dismiss.
Ossola, though, disagreed, citing a case from the early 1990s involving a Front Range shopping mall.
“While [SkiCo] relies primarily on federal case law to support its position, Article II, Section 10 of the Colorado Constitution provides greater protections for free speech than does the First Amendment,” Ossola wrote in his Oct. 3 ruling.
Ossola cited Bock v. Westminster Mall Co., in which the state supreme court held that Section 10 applied to the privately owned shopping mall.
The case involved two members of a political association known as “The Pledge of Resistance” who sought and were denied permission to distribute their pamphlets and to solicit protest signatures in the mall’s common areas.
In ruling that the Colorado Constitution protected the Resistance members’ free-speech rights, the state high court “based its holding on the fact that there was governmental involvement with the mall’s operation and the mall also functioned as a ‘downtown business district,’” Ossola wrote.
Mulcahy’s lawsuit alleges that SkiCo holds much of its ski properties as a tenant of the federal government and that it also owns nearly 50 percent of the commercial property in and around downtown Aspen.
When these allegations are construed in a light most favorable to Mulcahy — as Ossola must do by law when deciding the merits of a motion to dismiss — the judge found that, if true, they “could support a free speech claim under Article II, Section 10 to the extent that [SkiCo] may qualify as a ‘downtown business district’ under Bock,” the ruling says. “It is also possible that the level of governmental involvement with [SkiCo’s] operations could further support a free speech claim under Bock.”
Bateman did not return a message about the ruling. Asked for comment, Mulcahy wrote in an email: “The Crowns do a tremendous amount for their kingdom but the problem is greed and abuse of power. Aspen is not Versailles nor is it their feudal kingdom.”
Warning: Rant to follow, but it’s funny.
Big $ says I’m crazy. OK. With the current state of affairs, we need a little crazy. Our government just passed two bills you’ve probably never heard of taking away our Constitutional rights. Witness the union of the left and the right against tyranny: Google ACLU NDAA or HR347. The occupiers and the tea partyers are the same thing: little people fighting the elites.
My Father came from a farm without running water or electricity; he is the epitome of the American Dream. My Mom traces her heritage back to the Republic of Texas where her Great Grandfather founded Baylor University, my alma mater. Bud & Sandy Mulcahy took 5 of us from Aspen to Kenya to bring clean water to the village of a man they met on their 50th wedding anniversary.
My pastor says life is a struggle; I agree. My Celtic ancestors, the white trash of their day, rebelled against Rome; the Celts believed that God dwelled not in my Rome but with the people. They left Ireland to take this message of freedom to the world. “The most dangerous philosopher in the West,” according to The New Republic, Slavoj Zizek, quotes the same passage by Paul in Ephesians in his newest book introduction as my pastor did today: “For our struggle is not against flesh and blood, but against leaders, against authorities, against the world rulers….” He said if you don’t agree, pick up a recent copy of Time or Newsweek to see evil: man’s inhumanity to man.
As President Correa of Ecuador told the Brits and the USA, “Remember David defeated Goliath in the end.” I’m an Eagle Scout; however, our nation’s military industrial complex has made our hypocrisy on freedom and human rights a big joke all over the world. In Kenya, the Minister of Parliament Joyce Lebosa was inspirational. Both Lebosa and Rafael Correa are elites educated abroad and have taken up the causes of the underdog, the powerless. Like leaders Lebosa and Correa, I’m having a difficult time reaching the “Do as I say” elites to be more fair.* These limousine liberals in Aspen preach tolerance, yet have none.
*My former employer honored my 15 years of service by firing me through the media. The termination letter subsequently received stated “you violated Aspen Skiing Company policy on solicitation and distribution….” Skico banned me the day I passed out the flyer. The summons I taped onto the door of the company headquarters two years later maintains that leases of public lands do not equal ownership [e.g. the White River National Forest is not a Royal Hunting Forest.] The philanthropical owners of Aspen are business partners with half the world’s petty tyrants and pedal tanks to all sides.
Before I filed legal papers, I challenged the CEO to an Aspen tradition: a ski off. The CEO never responded to the flip off challenge. The attorney team from Denver did respond [see below and my response follows:].
To: firstname.lastname@example.org; email@example.com.
Date: Tue, 11 Sep 2012 17:13:42 -0600.
Subject: Mulcahy/Kaplan: email request for certain documents/ 2 week extension request.
Thank you again for your time and participation in yesterday’s deposition, we appreciate it. I meant to talk to you about two things while we were up there, but they slipped my mind yesterday. First, I wanted to get back to you on your email asking for Mike Kaplan’s “notes on meetings about [you].” We did reach out and worked to see whether there are any such notes per your request, but after reasonable inquiry it does not appear that there are responsive documents. We will let you know, however, if we come across responsive documents in our investigation and we will supplement our response under Colorado Rule 26(e), or seek a protective order from the Court if necessary. Second, given how late the deposition and other discovery occurred, plus due to other deadlines we’re faced with, we plan to file a motion later this week to ask the Court for a 2 week extension on the Rule 56 deadline, currently set for 9/17. Are you ok with that two week extension, or do you oppose?
To paraphrase my friend Meredith, “You want to dance? Let’s go.” Bullying is ahistorical.
My neighbor said SkiCo put up Wild West photos of me for their staff with instructions 2 call the police after I passed out the union flyer at the Little Nell. As far as Skico having no notes about me, wow. None? Nada? Rien? Ain’t Skico got nothin’?
I was the whistleblower on the economic engine of the valley & was banned the day I passed out a union flyer from National Forest. SVP Jim Laing had to drive to Denver all the time to sign in with the feds because of my charges and then was forced to make a fool of himself by lying to the local papers to hold onto his job. There were 2 federal settlements. Do I need to post the structural changes the feds made Skico publish to their Ski School [that they now refuse to talk about?] Hmmm… I think Mike is not being honest or you are not being honest.
Skico is so sensitive about the hilarious joke that they have become in our community that my second letter from May 2010 questioning the rationale for firing a singer, banning a song, and censoring a newspaper was discussed in an exec. staff meeting. [ The GM of the Nell told me at dinner during Food & Wine; he was drinking and we were socially connected. LOL. Not anymore!]
BTW, I do not oppose. In addition, I got lots of questions 4 Mike—especially questions about the “nice things” he told me he wrote in the comment book @ my public sculpture where he was spotted after dark one night writing. [For example, LOL: Did you yank the Barbie doll or was it Paula or Heidi? Tell Paula the artist that fellow CEO of the AAM and I think collaborative art is cool and invite her participation in the future, but stealing? (Google hilarious Mulcahy sculpture.) ] I will bring the court transcriber. When is good 4 Mike? Do I need to send the? s to you or the court 1st?
Lila, tell Jimmy and Paula that they picked the wrong person to bully out of the community. Yes, I know “Mr and Ms Crown” are used to getting everything they want. But tell ‘em I’m white trash with a backbone. And a PhD. Tell Jimmy and the artist Paula that they will ruin their legacy unless the 3 of us sit down and agree to kiss and make up and work this out.
Tell ‘em I said their doodoo smells 2. It was nice to meet u finally in person,
Wait-it gets better. The SkiCo partners with the Aspen Art Museum. The art museum banned me too! I did public art which was in a public place; the Crowns tried to strong-arm the City into taking it down. The City requested that I remove it in a letter copying 3 executives @ Skico. FYI, I’m not a criminal —but I am an 8th generation Texan artist who happens to believe in liberty. In their arrogance, bullies forget to be fair:
In an email I received Friday with the subject: CEASE ALL COMMUNICATIONS, the attorney from Denver wrote:
I am in receipt of the e-mail you sent earlier today to our client, Heidi Zuckerman Jacobson, CEO and Director of the Aspen Art Museum, a copy of which is set forth below.
You are hereby requested to cease all communications, written, electronic or otherwise, with Ms. Zuckerman Jacobson. If you fail to do so, we will pursue a formal restraining order or injunction to prohibit the same.
Very truly yours,
Kent C. Veio, Esq.
From: “Lee Mulcahy, PhD”
Date: August 24, 2012 1:11:40 AM EDT
To: Heidi Zuckerman Jacobson
Heidi, We’re a community and we should be able to agree 2 disagree without bannings. In addition, I will win on the Crown banning. Let me know if u want 2 have coffee to discuss the art museum’s ban. thanks lee
Kent Christopher (K.C.) Veio
Kline Alvarado Veio, P.C.
1775 Sherman Street
Denver, Colorado 80203
The art museum hated the painting seen on their surveillance cameras monitoring the vacant lot and the public parking spots that I leaned up against my pick-up. The police were called and had to tell the art museum it was freedom of expression. An art museum?
I love my community; but we can’t have coffee so I have to sue you?
My friend, Ray Cheney’s letter in October 2011:
A funny thing happened to me on the way to the RFO at the Aspen Art Museum. I recently drove over from Vail to assist a friend of mine, a local artist, who is constructing his home. After an exhausting day of manual labor, I found myself helping to unload two pieces of what he termed “guerilla art” in the park surrounding the art museum. We unloaded the first piece in the grassy park, leaning it against an Aspen tree, and went to retrieve the second. In the few minutes it took to return with, two name-tag wearing museum officials had absconded with the first piece.
After placing the second piece against a different tree without event, we were able to locate the first one behind the Art Museum and returned with it to the park where we were immediately accosted by the same two Aspen Art Museum Officials. Given their overbearing attitude and demeanor, I can only assume that they were respectively the Museum Director and Curator.
The taller of the two, I’ll refer to as Cartman, (“You must respect my Authoritay!!!”) insisted that we remove the art from the park. At that point, wanting nothing more than to go inside & grab a beer with my friend, a member, I suggested we just leave the piece leaning against a tree on the far side of the park. To which the shorter of the two responded, “Then we’ll just remove it from there.”
Desiring no further drama, we started back to the truck; however, due to the nature of the art, we were stopped numerous times by RFO attendees who engaged us, took pictures, and otherwise, slowed our progress. Before we could make it off the grass and into the parking lot, Cartman reappeared and announced that “no hard feelings – I’ve called the police” explaining that we were “co-opting my event.”
Within seconds, the police arrived; we continued on our way past them and loaded the paintings on the truck. We sat stunned. Realizing that freedom of expression no longer has meaning in of all places an art event in Aspen, Colorado. –Ray Cheney
My letter to the editor, November, 2011
Taking Heidi Zuckerman Jacobson’s counsel to heart, “If you see something, say something,” and to be fair to the talented architect of this colossal community black eye, many of us admire Shigeru Ban’s humanitarian efforts, as well as the art of Mika Tajima. Nevertheless, there was nothing humane about the ramming of the controversial new Aspen Art Museum down the throat of our community. And throwing out the kid’s show deeming it “refrigerator art?” Seriously?
As far as Heidi’s characterization of the recent acts of civil disobedience at the future site as “criminal”, let me offer another description: hilarious. Perhaps the entire Museum should review situationist art theory, the Frankfurt School of artists, CoBrA, Theodore Adorno, and the International Movement for an Imaginist Bauhaus. Aspen’s old guard can help fill you in.
Whichever local artists are responsible for these “cowardly acts,” you guys are making many of us ROFL. The Art Museum Director suggests we call the police on you. Instead, I say: Bring it. More fun—after all, we must be true to our history.
One month later, I was banned from the museum in December 2011 after the Art Museum called the police again about a painting entitled, “Meet the Art Police,” that was public art in a public place.
PLAINTIFF’S AMENDED RESPONSE TO DEFENDANTS MOTION TO DISMISS
Comes now, Plaintiff, Lee Mulcahy, PH.D. (“Mulcahy”) proceeding Pro Se, who respectfully submits this Amended Response to Defendant’s Motion to Dismiss.
Plaintiff certifies that he notified counsel for the Defendant, Aspen Skiing Company (“Skico”), via email dated April 13, 2012, that he would be on a charitable, religious mission, digging water wells in Kenya, Africa from mid-April to late-May, 2012. Despite this advance notice of his unavailability, Skico’s Counsel complains of Mucahy’s failure to respond to its attempts “to confer” with him, by both telephone and email, prior to filing the present motion before this Court. In addition, Plaintiff certifies that he sought the approval of counsel for Defendant, via telephone and email, prior to filing this Amended Response and received no timely reply.
INTRODUCTION AND FACTUAL ALLEGATIONS
Plaintiff was a valued employee of Defendant, Aspen Skiing Company, (“Skico”) for over fifteen (15) years. He was in fact the top rated ski instructor, out of approximately twelve hundred (1,200) instructors employed by Skico, for several of those years. In addition, due to Plaintiff’s producing more revenue than any other Skico employee, he was invited to join and participate in all of the elite programs available by invitation only to a select few of Skico’s employees.
On April 30, 2010, Plaintiff received his performance review for his last full season of employment and was ranked 11th on the Private Lesson Priority List. John Kneiper, Director of Snomass Ski School, enclosed a personal message with the review stating “100% return rate, great work. Thank you.”
On or about June 2, 2010, Plaintiff was reprimanded by Skico for submitting for publication a letter commending Skico for rehiring a musician fired for singing a song titled “Big Money” which an unnamed Skico vice-president found offensive.
Thereafter, Plaintiff, an hourly employee, was forced to involve the Colorado Department of Labor when Skico refused to explain or otherwise redress the deletion, by Skico supervisors, of hours from his timesheet, without notice to Plaintiff, and Skico’s resulting underpayment for hours worked by Plaintiff. Despite numerous requests, Skico refused to reveal its policy regarding the deletion of hours worked by its employees despite being ordered by the Colorado Department of Labor to pay Plaintiff for the hours Skico deleted from his timesheet.
On or about June 30, 2010, Plaintiff sent an email to the members of one of the elite, exclusive, “invitation only” programs to which he was a member, the “Diamond Pros”, wherein membership resulted in, inter alia, the ability of a member to receive a higher rate of pay than non-member employees. This email merely inquired as to the interest, if any, of the Diamond Pro members to work toward a collective bargaining agreement whereby ongoing employee grievances with Skico could be addressed in a productive fashion.
On or about August 12, 2010, Skico reprimanded Plaintiff for making the inquiry of the Diamond Pros.
On or about August 20, 2010, Plaintiff was removed as a Diamond Pro.
In October, 2010, Plaintiff filed a grievance with National Labor Relations Board as a result of Skico’s treatment of Plaintiff. The National Labor Relations Board subsequently found Skico guilty of on three (3) counts of violating federal labor laws, forcing Skico to significantly reform its operating structure.
On December 30, 2010, Plaintiff distributed flyers encouraging public attendance at a meeting of People for a Living Wage, a group which encouraged Skico and other Aspen employers to pay their employees wages which reflect the high cost of living in Aspen and encouraging unionization of employees. While distributing the flyers, Plaintiff was confronted by Skico’s Vice-President of Human Resources, Jim Laing (“Laing”) and summoned to Skico headquarters where Plaintiff was informed that Skico had both suspended his employment and banned him from all property owned, leased or otherwise controlled by Skico.
On January 31, 2011, Plaintiff received a telephone call from a reporter seeking comment on a letter written by the Chief Executive Officer of Skico, Mike Kaplan (“Kaplan”), and published on February 1, 2011, in both The Aspen Times and The Aspen Daily News, wherein Kaplan informed Plaintiff, and the general public, that Plaintiff was fired from Skico.
Thereafter, Plaintiff received a letter, dated January 27, 2011, from Laing, confirming both Kaplan’s firing as well as Skico’s banning of Plaintiff from any of Skico’s facilities, properties or locations.
On March 30, 2012, Plaintiff was charged with Third Degree Criminal Trespass, as a result of Plaintiff serving Skico with the Complaint in this action. Plaintiff served defendant by merely walking on a sidewalk running between a parking lot clearly displaying signs reading “No Skico Parking” and Skico’s headquarters, and taping a copy of the Complaint to a side door. All efforts to otherwise serve defendants in this action by court appointed officials were unsuccessful.
On July 3, 2012, at the arraignment for the trespass alleged by Skico, the prosecutor stated that he is seeking to impose the maximum six (6) month jail sentence if Plaintiff is found guilty.
Skico seeks to make Plaintiff an example of what any reasonable employee could expect should it seek assistance of state and federal agencies to redress violations of labor laws by Skico and/or promote unionization of Skico employees. It is Skico’s assertion that it can retaliate against Plaintiff , or anyone Skico feels espouses views which Skico dislikes, from any of Skico’s “facilities, properties or locations ”, subjecting them to criminal prosecution should they unwittingly cross the invisible, unknown boundary to various properties, operating under numerous names, including thousands of acres of land owned by the public.
Colo.R.Civ.P. 12(b)(5) is not applicable in that Plaintiff has stated a claim where the factual allegations, as a matter of law, support the claim for relief. Colo.R.Civ.P. 15(a) provides that a party may amend its pleading with leave of the court; and leave shall be freely given when justice so requires.
Few, if any, private entities in modern times have established a fiefdom such as is overseen by Skico. It is the sole operator of all four (4) ski areas in the Aspen area. Several of those areas are comprised, in part or in whole, by thousands of acres of public lands within the White River National Forest, owned by the United States of America and managed by the United States Forest Service. In addition, Skico is believed to own or control close to fifty percent (50%) of the commercial property within Aspen and the surrounding areas, ranging from hotels, bars, and restaurants, to athletic clubs, open air plazas, and trailer parks, with each operating under different, or no, names, with no indication of Skico’s ownership nor with any recognizable delineation of the boundaries of these properties.
Nor has any modern private entity evidenced the hubris of Skico in trying to make an example of Plaintiff, a bible-studying Eagle Scout who actively manages charitable missions to dig water wells in Africa, by publicly threatening criminal prosecution should he inadvertently cross unmarked lines running throughout both Aspen and thousands of acres of surrounding forest land, the location of which are known only to Skico, as retaliation for Plaintiff’s turning to State and Federal Agencies to force Defendant to comply with federal and state labor laws, and/or promoting unionization of Skico employees.
Plaintiff here seeks only the ability to continue to live a law-abiding life in the town he has called home for seventeen (17) years without fear of walking down what is believed to be a public street, sidewalk, alley, plaza or trail and being again charged with trespassing on Skico’s property. Plaintiff is not seeking the right to enter Skico’s various, diverse and largely unknown property for any unlawful or vexatious purpose, merely for the right to freely enter upon all of the property held open to the public solely for purposes in furtherance of the operation of such property.
Plaintiff’s Promotion of Unionization are a Protected Exercise of Free Speech Under the United States Constitution, the Colorado Constitution, and the National Labor Relations Act
Plaintiff’s distribution of flyers promoting unionization of Skico employees was an exercise of his right to speak freely as guaranteed by the First Amendment to the United States Constitution, Article II, Section 10 of the Colorado Constitution, and the National Labor Relations Act.
The First Amendment provides that no law shall be made abridging the freedom of speech or press. In contrast, Article II, Section 10 of the Colorado Constitution reads in relevant part as follows:
No law shall be passed impairing the freedom of speech; every person
shall be free to speak, write or publish whatever he will on any subject…
Colo. Const. Art. II, Section 10. As early as 1889, the Supreme Court of Colorado has recognized the dual guarantees afforded free speech in Colorado as necessary to “… secure to the whole people a full and free discussion of public affairs”. Cooper v. People, 13 Colo. 337, 362, 22 P. 790, 798 (1889).
In Bock v. Westminster Mall Company, 819 P.2d 55 (Colo. 1991), the Supreme Court of Colorado further found “that our state constitution guarantees greater protections of petitioners’ rights of speech than is guaranteed by the First Amendment.” Bock, 819 P.2d at 58. Bock arose as an appeal from the finding of the court of appeals that petitioner’s did not have the right to distribute flyers in the common area of respondent’s privately owned shopping mall. The Supreme Court of Colorado overturned the court of appeals by first conducting an exemplary analysis of free speech guarantees, stating:
“We preface our analysis by re-affirming the high rank which free speech holds in the constellation of freedoms guaranteed by both the United States Constitution and our state constitution. The United States Supreme Court and this court have been extraordinarily diligent in protecting the right to speak and publish freely.”
Bock, 819 P.2d at 57. In light of the greater protections of free speech provided under our state constitution, the court in Bock analyzed the “tortuous history” of the “United States Supreme Court’s First Amendment jurisprudence on the scope of free speech in the face of private power”. Bock, 819 P.2d at 58. It then specifically declined to follow the “twists and turns of the federal road” evidenced by cases such Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) relied on by defendant’s counsel in its Motion to Dismiss. Id. The court adopting instead “individual liberties more expansive than those provided by the Federal Constitution” as specifically allowed by the United States Supreme Court in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). Bock, 819 P.2d at 59.
After clearly establishing the precedent that our state constitution provided greater protection for freedom of speech than that provided by the First Amendment, and rejecting the findings of cases such as Lloyd, supra., the court then thoroughly evaluated the role of public and private action impacting free speech despite clearly stating “(W)hen a state constitution like ours is more protective of free speech than is the federal constitution, a finding of “state action” according to the federal doctrine is unnecessary”. Id., footnote 7. In considering the arguments of the parties, the Bock court recognized that there exists “hybrid forms” of public involvement. Id., at 60. “(W)here governmental entities … are shown by the facts to … approve of or encourage private interests and such private interests happen also to restrict the liberty to speak and dissent, this court may find that such private restrictions run afoul of the protective scope of Article II, Section 10. It is possible for interests, otherwise private, to bear such a close relationship with governmental entities … that such interests are affected with a public interest.” Id., at 60.
The court then concluded that: given the visible presence of government entities in the Mall; given that the Mall was the modern equivalent of a business district with the common areas functioning as a “latter day public forum” as well as “virtual public spaces” available to a variety of groups and visiting public; given that a prohibition of non-violent speech, “if allowed to stand, would amount to a non-neutral, content-based restriction”; and given that no there was no showing that the distribution of pamphlets would interfere with normal business operations and therefore not affect private property rights, the court reversed the lower courts and remanded the case for entry of summary judgment in favor of petitioners. Id., at 61-63.
In the present case, Skico’s has an exclusive lease of thousands of acres of public lands within the White River National Forest. Plaintiff has repeatedly appealed to the District Ranger, Scott Snelson, to confirm the Forest Service’s position with regards to Skico’s banning as it applies to these public lands and has received no response. Given this lack of response, it must be concluded that the Forest Service approves of Skico’s draconian means of restricting speech and dissent, with such restrictions running afoul of free speech protections so eloquently delineated in Bock. It also establishes such a close relationship between the Forest Service and Skico that Skico’s private interests are clearly “affected with a public interest”.
In addition, Skico owns or controls several outdoor plazas which are indistinguishable from surrounding public spaces. These plazas are available to the general public, with private parties expressly allowed to advertise non-Skico businesses thereon. See, Sandwich board lady survives mini skirmish with Skico, Aspen Daily News, September 27, 2012.
The expansive free speech protections provided by our state constitution, so thoroughly explained in Bock, clearly protected Plaintiff’s distribution of flyers as an exercise of free speech. The fact that Plaintiff was then employed by Skico and was distributing flyers promoting unionization of his fellow Skico employees gives rise to additional protections of his actions pursuant to the National Labor Relations Act (“NLRA”).
Section 7 of the NLRA specifically protects an employee who actively promotes unionization of his fellow employees. Section 8(b)(7)(C) specifically allows “publicity for the purpose of truthfully advising the public (including consumers) that employer does not employ members of a labor organization.” 29 U.S.C. S 158(b)(7)(C). The flyers contained both a call for Skico employees to unionize as well as publicity advising that Skico, did not and does not employ union members, outside of certain ski patrols, and were therefore clearly protected actions under the NLRA.
Clearly, Plaintiff’s distribution of the flyers was free speech protected under our constitution as well as the NLRA. However, it is the continuing persecution of Plaintiff by Skico, in the form of Skico’s banishment of Plaintiff from any of Skico’s facilities, properties or locations, imposed immediately following and as a direct result of Plaintiff’s protected distribution of the flyers, that is the basis of the present action.
Skico’s Banning of Plaintiff is Retaliatory in Violation of the National Labor Relations Act
Given Skico’s dominion over the Town of Aspen, a modern day equivalent of a despotic 19th and 20th century company town, where banning is a substitute for rational discourse, it is understandable that the facts here present a case of first impression. However, the United States Supreme Court and Colorado Law have provided an appropriate and applicable framework for deciding this matter: the tort of retaliatory actions taken by an employer for legally protected actions of an employee.
The Supreme Court of the United States, in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), concluded that antiretaliation provisions, such as those contained in the National Labor Relations Act, do “not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those … employer actions that would have been materially adverse to a reasonable employee or job applicant.” Burlington Northern, 548 U.S. at 57. The Supreme Court then stated that antiretaliation provisions, to be effective, must apply in situations where an employer’s actions are not directly related to the employees job or cause the employee harm outside the workplace
Locally, the United States Court of Appeals, Tenth Circuit, applying Colorado law, in Jarvis v. Nobel/Sysco Food Services Company, 985 F.2d 1419 (1993), stated that retaliatory actions are considered a tort, evolving “as an exception to the historic right of employers to terminate employees at will”. Jarvis, 985 F.2d at 1427, citing Martin-Marietta Corp. v. Lorenz, 823P.2d 110, 104-05 (Colo. 1992). In Jarvis, the Court went on to reaffirm that with regards to retaliatory behavior under Colorado law, employers rights are not relevant, with such rights giving way to the “employee’s statutory right to be free from retaliation” and that the employers rights are deemed secondary to the motives of the employer in exercising such rights. Jarvis, 985 F.2d at 1427. Particularly when the employers motives “contravenes a clear mandate of public policy”. Id. at 1427.
In the present case, Plaintiff filed charges with both the Colorado Department of Labor and the National Labor relations Board as a result of Skico’s failure to comply with applicable labor laws. Plaintiff promoted the idea of unionization to other Skico employees and was removed from the elite “Diamond Pros”. Then Plaintiff distributed flyers again encouraging unionization and encouraging Skico to pay wages which reflect the cost of living in Aspen and was suspended from work (and later fired), and immediately banned from nearly fifty percent (50%) of downtown Aspen and all of the surrounding ski areas, including thousands of acres of public lands. When Plaintiff commenced this action by walking along a sidewalk and taping a copy of the complaint to a side door of Skico’s headquarters, Skico, having refused all other efforts to serve it, acknowledged receipt via this unorthodox method of service and immediately had Plaintiff charged with criminal trespass, with Plaintiff currently facing a $500.00 and/or six (6) months in jail if convicted.
In addition to firing Plaintiff for his attempts to unionize his fellow employees, it can not be disputed that Skico’s retaliatory banishment of Plaintiff continues to harm him in a manner not associated with his employment or in the workplace. In a small town with approximately 6,000 permanent residents, where Kaplan feels that he is entitled to fire an employee by publishing such action via a letter to both of the local daily newspapers, and then publishing any even more defamatory letter in response to the public outcry generated by the first, Plaintiff’s banishment is known by one and all. Skico has clearly demonstrated the materially adverse consequences that any reasonable employee or applicant would face if they should dare exercise their federally protected rights.
Plaintiff was a highly valued, and valuable, employee of Skico until he dared to challenge Skico’s practice of deleting hours from employees timecards and began calling for unionization of Skico’s employees. Skico has not provided any direct explanation of the banning serving as the basis for the present action. Even if Skico was able to espouse a non-discriminatory defense of its actions, in light of the facts, there is no plausible defense of Skico’s continuing persecution of Plaintiff that is not obviously pretextual. “Under Tenth Circuit precedent, pretext may be shown by “such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proferred legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Bryant v. Farmers Insurance Exchange, 432 F.3d 1114, at 1125 (10th Cir. 1999), quoting Morgan v. Hiti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
Again, Skico imposed the subject ban immediately following Plaintiff’s distribution of the flyers. It has not and cannot provide any plausible legal basis for its actions. It is exactly such megalomaniacal retaliatory behavior which the United States Constitution, the Colorado Constitution, and the National Labor Relations Act protects against.
For the reasons stated above, Plaintiff Lee Mulcahy, PH.D. respectfully requests that this Court deny Defendant’s Motion to Dismiss.
In addition, Plaintiff Lee Mulcahy, PH.D. respectfully requests that this Court deny defendant’s request for an award of attorney’s fees.
Respectfully submitted, Tuesday, October 2nd, 2012
_______________________________________ Lee Mulcahy – Pro-Se, firstname.lastname@example.org
Trial continued for local man in fight against SkiCo and trespassing ticket
by Chad Abraham, Aspen Daily News Staff Writer
Thursday, October 4, 2012
Email this Story
After two previous efforts at getting his trespassing trial continued failed, the third time was a charm on Wednesday for a former ski instructor embroiled in a long legal fight with the Aspen Skiing Co.
Lee Mulcahy, 48, of Aspen, persuaded Judge Erin Fernandez-Ely of Pitkin County Court that issues in his two lawsuits against SkiCo officials may affect his misdemeanor case.
Mulcahy contends he was fired in January 2011 because he distributed fliers to guests in the SkiCo-owned Little Nell hotel and in gondola plaza that criticized the ski school’s instructor pay policies. He also filed two complaints with the National Labor Relations Board (NLRB). SkiCo officials have maintained that his dismissal was unrelated to the NLRB complaints and cited the work performance of Mulcahy, who at one time was part of an elite team of instructors.
Mulcahy sued SkiCo and its CEO, Mike Kaplan, in February for libel, and sued company owners Paula and James Crown in March.
The latter suit contends that his termination from the company and its subsequent banning of him from SkiCo-owned property and U.S. Forest Service land the company leases for the ski areas was retaliatory and unconstitutional.
Mulcahy was cited for trespassing in late March for allegedly going onto SkiCo’s property at the Aspen Business Center to serve the Crowns with the lawsuit summons.
He said in court on Wednesday that some of the exhibits Aspen prosecutor Richard Nedlin plans to use at trial — namely, the letter from SkiCo vice president Jim Laing that spelled out the ban — are exhibits that Mulcahy is using in his lawsuits.
In essence, were Mulcahy to prevail in the lawsuit against the Crowns and have the ban overturned, it would make the trespassing ticket moot.
“I’m an American, I pay taxes,” he said in court regarding the Forest Service ban. “I object to that.”
He also said he believes he is protected under the federal whistle-blowing law.
That was enough for Fernandez-Ely to continue the misdemeanor jury trial, which had been set for today and Friday.
Previous continuance motions that Mulcahy filed because he was out of the country, and then was trying to finish building his Burlingame residence before winter, had been denied. Mulcahy, who is representing himself, waived his right to a speedy trial.
Fernandez-Ely set a status conference for Dec. 11 in an effort to let the issues related to exhibits be sorted out on the civil side before the criminal matter is addressed.
Fernandez-Ely noted that finding six jurors for the trespassing trial may be difficult given the media coverage of Mulcahy and because so many people work for the SkiCo, which automatically disqualifies them from the jury pool.
Wait-it gets better. Limousine liberals, the billionariosa Familia de Chicago obtain a restraining order on…art? ROFL:
SkiCo obtains protection order against former instructor
by Chad Abraham, Aspen Daily News Staff Writer
Tuesday, November 27, 2012
Email this Story
A judge on Friday signed a temporary protection order for the Aspen Skiing Co. that prevents a former ski instructor from coming within 100 yards of company-owned property and the residences of its CEO and corporate owners.
The SkiCo sought the order after Lee Mulcahy of Aspen allegedly parked a trailer that held hand-painted signs, one of which says, “Dear CEOs Be Fair Remember the Alamo,” in front of the company’s headquarters at the Aspen Business Center.
The alleged sign placement on Wednesday is the latest in a long string of incidents that have included Mulcahy being fired in 2011 after he distributed fliers to guests in the SkiCo-owned Little Nell hotel and in gondola plaza criticizing the ski school’s pay policies. The SkiCo maintains he was dismissed for work-performance issues unrelated to the fliers.
The company banned Mulcahy from its property, including the ski areas it leases from the federal government, and he responded by suing the company and its owners, Paula and James Crown, contending the ban is overly broad and unconstitutional. He also sued SkiCo CEO Mike Kaplan for libel.
Chris Council/Aspen Daily News
Lee Mulcahy’s artwork parked on South Monarch Street on a recent afternoon. He has been driving the trailer around town in recent weeks with various messages. After parking it in front of the Aspen Skiing Co. headquarters last week, it prompted the company to file a protection order against him.
Both lawsuits remain pending, and Mulcahy also still faces a misdemeanor trespassing charge for allegedly going onto SkiCo property at the ABC to tape court papers for the Crowns to the building. He has pleaded not guilty.
SkiCo attorney Dave Bellack filed, along with the protection order motion, affidavits from 10 employees who say that the Alamo sign has caused them to feel “harassed and … great fear and anxiety” for their safety.
Bellack wrote that SkiCo employees fear that Mulcahy’s alleged actions will “escalate into acts of violence.” His motion notes that “the reference to the Alamo was a battle cry for revenge used by U.S. troops during the War with Mexico and the Spanish-American War.”
Mulcahy on Monday filed a 14-page response to the protection order motion, calling himself a “Bible-studying Eagle scout” who was an instructor for the SkiCo for more than 15 years. He describes at length the long battle with his former employer.
“The phrase ‘Remember the Alamo’ represents the struggle of little people against overwhelming odds,” Mulcahy wrote.
He doesn’t deny parking the trailer directly outside the company’s headquarters but says he “lives a block away and often stops at the bank and grocery store adjacent” to the SkiCo offices.
Judge Denise Lynch of Pitkin County District Court, who signed the temporary protection order, set a hearing for Wednesday to allow the sides to present their cases. email@example.com
Aspen Skiing Co. loses its latest battle with Mulcahy
The Aspen Times
Aspen, CO, Colorado
ASPEN — Aspen Skiing Co. officials failed to convince a judge Wednesday that a former ski and snowboard instructor poses an imminent threat to the firm’s employees.
Pitkin County Judge Erin Fernandez-Ely rejected Skico’s request for a protection order that would have forbidden Lee Mulcahy from being 100 yards of company property as well as the residences of CEO Mike Kaplan and the Aspen homes belonging to members of the Crown family, the firm’s owners.
But the judge implored Mulcahy to back off Skico because his artistic tactics have only inflamed tensions between him and his former employer. While acknowledging Mulcahy’s right to expression, she also instructed him to stop being abrasive toward Skico with his artwork.
“Stop trying to put yourself in their face,” the judge told Mulcahy, who agreed to cease displaying artwork and messages that disparage Skico — at least in Skico’s view.
Fernandez-Ely’s ruling came after District Judge Denise Lynch, on Friday, signed a temporary restraining order on Skico’s behalf. Skico claimed that Mulcahy’s handwritten signs, supported upright on a trailer hitched to a pickup truck — one message said “Dear CEOs Be Fair Remember the Alamo” — constituted harassment. That’s because Mulcahy had parked the trailer next to Skico’s administrative offices at the Aspen Business Center as well as on Durant Avenue across from the Gondola Plaza.
Mulcahy didn’t deny that the trailer was his and that he wrote the messages. But he said they were simply a product of his “white-trash trailer art” and that Skico should lighten up about the matter.
Skico, however, took a more businesslike approach at the hearing. Attorney David Bellack said as many as 10 Skico workers could testify that they felt threatened by Mulcahy’s messages.
“Our employees see this from across the gondola and next to our (business center) office,” Bellack told the judge. He called Mulcahy’s Alamo reference a “threatening message” that made Skico workers “feel uncomfortable and endangered at the workplace.”
“The message suggests acts of violence,” testified James Ward, Skico’s director of purchasing, who works at the ABC headquarters. Mulcahy also lives in housing at the business center.
However, while cross-examining Ward, the attorney-less Mulcahy said that the message was merely symbolic of “little people against insurmountable odds.”
Another witness, Keith Ikeda, the company’s head of security, said that Mulcahy’s ongoing bouts with Skico are indicative of an “escalating pattern” in which the “ultimate outcome could be mass casualty.”
Ikeda, who worked 25 years in local law enforcement, most recently as Basalt’s police chief, theorized that Mulcahy is “obsessed” with Skico.
“You feel like you’ve been wronged, and you keep trying to rectify this,” he told Mulcahy under cross-examination. “And that is your right. What concerns me is … your idea of your war against Skico, like you are David against Goliath.”
Skico fired Mulcahy and banned him from company property in February 2011. The company said it was because he was not a good employee. Mulcahy claimed that it was because he criticized company practices and pay and talked to other instructors about forming a union.
In February, a deputy cited Mulcahy on suspicion of trespassing when he allegedly taped up a court notice at Skico’s offices at the business center. The notice regarded a lawsuit that Mulcahy filed against Jim and Paula Crown, members of the family that owns Skico.
In a court appearance earlier this year, as well as during Wednesday’s hearing, Mulcahy told the judge that Skico acted in a “retaliatory” manner and violated his constitutional rights by implementing the ban. The trespassing case comes up for further proceedings Dec. 11 in county court.
Meanwhile, Mulcahy delivered an emotionally charged closing argument Wednesday, making references to President Kennedy, the wars in Iraq and Afghanistan, the Crown family’s holdings in defense contractor General Dynamics, corporate corruption, and a local church and temple, both of which he attends. He insisted that he does not have violent tendencies, but he is frustrated with Skico’s efforts to mute his criticism of the company. All he wants, he told the judge, is to “sit down with the Crowns and say, ‘Let’s move on and agree to disagree.’”
The Alamo message, he said, was taken out of context by Skico, he said.
“This is a wonderful town we call home, and I feeI I’m being massacred by Skico. … I gave them 15 years of my life,” he said.
He also said Skico’s restraining-order bid was done to make his life more difficult.
“I live a block away from their headquarters, and right now I’m prevented from going to the bank or my neighborhood grocery store because it’s 100 yards away from Darth Vader’s helmet,” he said before the judge denied the protection-order request.
One of his supporters and friends, Shelly Gross, served as a character witness for Mulcahy, as did two other local residents.
“He’s an artist,” she told the judge. “He’s a little out there but as sweet as they come. I don’t necessarily agree with (everything) he has done, but he has a heart of gold.”
Another Mulcahy friend, Brian Langford, called Mulcahy a “classic pacifist.”
Skico’s Bellack, however, was not swayed by Mulcahy’s testimony nor his friends’.
“I think Mr. Mulcahy’s incoherent ranting is exactly what Mr. Ikeda referred to as a precursor to violent behavior,” he said while making his final lobby for a permanent protection order.
The judge disagreed but was emphatic to Mulcahy that he will never get the reconciliation he desires from Skico’s brass or owners.
“What I want you to do is forgive and move on, and don’t have that expectation of reconciliation,” she told Mulcahy. “Reconciliation is unrealistic, completely unrealistic.”
SkiCo’s restraining order against former instructor Mulcahy dismissed by judge
by Chad Abraham, Aspen Daily News Staff Writer
Thursday, November 29, 2012
Email this Story
An Aspen judge on Wednesday dismissed the temporary restraining order that the Aspen Skiing Co. obtained against a former ski instructor after he agreed to take down large signs he was towing around town with messages to the company.
The SkiCo obtained the order against Lee Mulcahy of Aspen on Friday after he parked a trailer in front of the company’s headquarters at the Aspen Business Center last week. The order prevented him from coming within 100 yards of company property and the residences of SkiCo executives.
One sign said, “Dear CEOs Be Fair Remember the Alamo,” and the SkiCo contended in its restraining order motion that the message sparked fear in employees.
In Wednesday’s hearing, SkiCo attorney Dave Bellack said that employees worry that Mulcahy’s actions may escalate into violence.
“Remember the Alamo” was a slogan that motivated U.S. soldiers to kill Mexican and Cuban troops out of revenge, Bellack told Judge Erin Fernandez-Ely of Pitkin County Court.
His motion for the restraining order included affidavits from 10 employees who said they feel in danger in the workplace after seeing Mulcahy’s signs.
Mulcahy has long been at odds with his former employer, which fired him in 2011 after he distributed fliers in the SkiCo-owned Little Nell hotel and in gondola plaza criticizing the ski school’s pay policies. SkiCo officials say he was fired for work-performance issues unrelated to the fliers.
The company banned Mulcahy from its property, including the ski areas it leases from the federal government, and he responded by suing the company and its owners, Paula and James Crown, contending the ban is overly broad and unconstitutional. He also sued SkiCo CEO Mike Kaplan for libel (both lawsuits are ongoing).
Bellack on Wednesday called James Ward, the company’s director of purchasing who works at the SkiCo’s ABC offices, to testify.
Ward said that, after seeing the sign outside the headquarters, he was “generally concerned” for his well-being and that of his co-workers.
Answering questions from Mulcahy, who represented himself, Ward said, “I don’t know you or what your motives are, but [the Alamo sign] creates a sense of uncertainty.”
Mulcahy apologized to Ward, telling him that his intent was not to make employees feel threatened.
Mulcahy, a self-described artist, said it was ridiculous that SkiCo was accusing him of harassing its staff.
“What is this really about?” he said. “They’re harassing me.”
He reiterated his apology several times, but said he used the Alamo slogan because it represents standing up for freedom against insurmountable odds. Mulcahy said he feels he is “battling Goliath.”
Bellack also called Keith Ikeda to testify. The longtime local law enforcement officer who was once the Basalt police chief is now SkiCo’s security director.
Ikeda said the signs on the trailer are indicative of harassing behavior and also indicate a potential “escalation of behavior” on Mulcahy’s part.
“You’re obsessed with SkiCo’s dealings, and you feel you’ve been wronged,” Ikeda told Mulcahy. “When it goes beyond that obsession and starts escalating, that’s when it gets into potentially violent situations.”
“Art can do that?” Mulcahy asked.
Ikeda said that while he’s not an art critic, “What concerns me is your idea of this war against the SkiCo. You’re the Alamo, SkiCo is the Mexican army; you’re Aaron Burr, and SkiCo is the federal government.”
“Do you think I was trying to massacre the SkiCo?” Mulcahy asked.
“I think you feel you’re the underdog,” Ikeda said. “The references are about killing and massacres.”
But Mulcahy said the signs also had messages about ending war and “peace, love and joy.”
He called three witnesses, friends of his and his family, who portrayed Mulcahy as a “classic pacifist.”
Mulcahy said, as an artist, he tries to create change and wants the SkiCo to laugh at itself as he laughs at himself. But he also called the Crown family that owns the company “war profiteers” who are trying to get a “restraining order on art.”
“They fired me, they smeared me, they banned me,” he said.
Fernandez-Ely, trying to reach a compromise, asked Mulcahy if he would take down the signs and stop “intentionally harassing” the company.
“Yes, ma’am,” he said. “Even though I disagree … because it’s freedom of expression, SkiCo’s got me by the cojones.”
Bellack said the company would like the temporary restraining order extended to 120 days, if not made permanent.
“I think Mr. Mulcahy’s incoherent ranting is exactly the evidence that Mr. Ikeda describes as a precursor to violent behavior,” he said.
But Fernandez-Ely said one factor needed to extend or make permanent the order — that Mulcahy will continue such behavior — hadn’t been proven. She also said some of the signs were protected free speech.
Fernandez-Ely dismissed the restraining order, but warned Mulcahy that if he again references the Alamo or other violent incidents, she is likely to enforce the order.
“Stop trying to put yourself in their face,” Fernandez-Ely said.
On the back of Ajax: Lee Mulcahy, rodeo 540